different branches of the tree structure. Kugimiya discloses a system for translating
documents from English to Japanese. As part of the translation process, Kugimiya
translates the document’s content from English to Japanese, after which it puts the XML
tags into the translated document.
After the tags are replaced, the separate file
containing the tags is discarded.
Although obviousness is a question of law, it is based on factual underpinnings.
As always, our review of the ultimate legal question, whether the claimed invention
would have been obvious, is de novo. Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d
1098, 1108 (Fed. Cir. 2003). The extent to which we may review the jury’s implicit
factual findings depends on whether a pre-verdict JMOL was filed on obviousness. Id.;
see also Jurgens v. McKasy, 927 F.2d 1552, 1557-58 (Fed. Cir. 1991).
In this case, Microsoft has waived its right to challenge the factual findings
underlying the jury’s implicit obviousness verdict because it did not file a pre-verdict
JMOL on obviousness for the Rita, DeRose and Kugimiya references. Fed. R. Civ. P.
50(a), (b). As we explained in Duro-Last, a party must file a pre-verdict JMOL motion
on all theories, and with respect to all prior art references, that it wishes to challenge
anticipation, based on S4, was insufficient to preserve its right to post-verdict JMOL on
a different theory (obviousness), or on different prior art (Rita, DeRose, Kugimiya).
Duro-Last, 321 F.3d at 1107-08.
Accordingly, we do not consider whether the evidence presented at trial was